2010831 (Refugee)

This matter concerned an application for a protection visa by an applicant from Vietnam. The applicant claimed to fear persecution on the basis of political opinion and religious belief. The decision under review was made by the delegate of the Minister for Immigration.

The court was required to determine whether the applicant was a refugee to whom Australia owed protection obligations under section 36(2)(a) of the *Migration Act 1958* (Cth), and alternatively, whether Australia owed protection obligations under section 36(2)(aa) of the Act, which applies to non-refugees. This involved assessing the applicant's credibility regarding claims of police brutality and religious persecution, and considering the significance of his attendance at anti-government protests and subsequent social media posts.

The court accepted that the applicant had attended Viet Tan protests in Sydney and posted photos and commentary online. However, the court found that these activities were undertaken solely to strengthen his protection visa application and therefore had to be disregarded for the purposes of assessing a well-founded fear of persecution under section 5J(6) of the Act. The court did not believe the applicant's evidence of police brutality in Vietnam or his claims of persecution based on his interest in the Roman Catholic faith, finding he was not a practising member of that church. Consequently, the court concluded the applicant was not a refugee under section 36(2)(a).

Despite not being found to be a refugee, the court found that the applicant met the criteria for complementary protection under section 36(2)(aa). The court was satisfied that there were substantial grounds for believing that the applicant faced a real risk of suffering significant harm, as defined in the Act, as a necessary and foreseeable consequence of his removal from Australia to Vietnam. Accordingly, the court set aside the decision under review and substituted a new decision that the applicant satisfied the criterion in section 36(2)(aa).